Prop 8: Look How Far We’ve Come?

2. Perry has allowed us to address other incidents of anti-gay discrimination aside from same-sex marriage bans. Along the way, Perry has taken a few detours. The Prop 8 proponents have moved to vacate Judge Walker's decision declaring Prop 8 unconstitutional based on the fact that the judge was biased: in a committed, long term same-sex relationship, Judge Walker could have wanted to marry his partner at some point in the future. That is the argument, at least. The Perry litigation has, for the first time, resulted in a federal court declaring that gay judges are no different than any other judges. Just like African-Americans has adjudicate civil rights cases involving African-Americans, gay and lesbian judges can sit in judgment of issues directly related to the gay community.

This is more important than you might imagine. Gay people — gay men, especially — have long been victims of the insidious stereotypes that they are hedonistic, focused only on sex, and interested only in their personal and selfish benefit. That stereotype formed the basis of the offensive suggestion that someone who is gay and in a relationship could never separate his personal views from his legal conclusions. Perry has, therefore, taken one of the sharpest daggers in the backs of gay Americans and not just sewed up the wound, but made sure that the weapon cannot be used in a court of law again.

3. Perry may have national implications; a ballot initiative cannot. I do not believe that the Perry litigation will result directly in national same-sex marriage rights for all gay Americans. But that argument aside, Perry will provide future legal battles with necessary and helpful pro-gay precedent. A ballot initiative cannot do anything of the kind.

In fact, the only thing a ballot initiative will do is take us backward. It will allow anti-gay forces to marshall the misleading, hateful, and ridiculously fallacious arguments that they could not use at court. It could result in a situation where we keep debating the same question every two years, at a multi-million dollar price tag of money that could better be used elsewhere. But, that is a discussion for a future post.

Prop 8 and DOMA: The Amicus Brief and the Primacy of Law [tr]


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.